Eed & Us Federal Court Of Appeals

[Flatbroke]

This Might be a little long and I will apoligize now

KDM's post prompeted this post and I am trying not to interfere with his.

My attorneys, which have been handeling my appeal since 1995, have finally got to an appeal to the Federal Court of Appeals in D.C.

After being denied for at first lower back SC due to lifting 94 lb rounds while serving in Nam on a M109 Howitzer, my attorneys finally helped me to get 20% in 2004 but the VA only backed up to 2001.

We filled a NOD within 2 months for an EED. The BVA finally denied me EED even though in thier denial they state the the orginal decision was based only on the VA's exam and xray. They furthur stated that they did not have my MILITARY MEDICAL RECORDS in front of them, where on my exit exam the Doctor stated I had Spina Bifida (from birth), but had Spondilicis & Spondalosis. Which is a natural occur in people with Spina Bifida. But this does occur in a time span of 20 to 30 years, not 13 months!

After the BVA denied me an EED my attorney filed a NOD again even stating that the VA and the BVA stated the VA did not have my military medical redords in from of them.

Suprise the CVAC upheld the BVA's decision and denied me an EED of April 1970 for my back , (which was within one month of discharge) so we filled another NOD to the US Federal Appeals Court in D.C.

We filed 1/10/2013 and after the VA's attorneys says the Federal Appels Court did not have jurisdiction to hear my case the Court set a date of May 8, 2013. Man was I floored from Jan to April to set a date, sh** if the VA moved that fast there would be no backlog.

Berta, Carlie, John and a few others I know you want to know the case number. So with out further adu ( I think you can see I am happy) the number is 12-7136 Federal Court of Appeals.

I hope this sets a presadence (spelling) that can help others get thiers.

So as I casualy wait for a decision, BULL I am already climbing the walls I just got to remember to take my Oxygen with.

Later Brothers and Sisters

[broncovet]

This should apply to you, based on what you posted: (38 CFR 3.156 © states:

c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a) )

[Flatbroke]

Thanks I will let my attorneys know

Flatbroke

[deanbrt]

I felt lucky to get a remand at CAVC that led to my eventual award. I figured it I had to go past that it was over. I wish you the best...

[carlie]

Flat,

I hope you lawyer follows thru with 38 CFR - 3.156 © as it should be applicable

in regard to an EED.

If you have the time and patience, I would sit down and go thru all rating decisions,

SOC's and SSOC's you have received to date, including BVA and the court -

and see if they have mentioned or considered 38 CFR 3.156©, at any time.

What reason and reg was provided and supported, to warrant the effective date

they adjudicated ?

[Flatbroke]

Carlie,

I sent to my attorney yesterday afternoon the info on 38CFR 3.156 c. He was checking his emails after supper last night and said he would check into it this morning. He is a junior partner and working with my attorney (a senior partner) that has been on my case since 1995 and is realy getting into this.

He is real eager and from what I have seen he is a real go getter and every time I or someone from Hadit notes something I email him.

I got him checking out the forums on Hadit and he thinks what the veterns are doing for each other is great.

As to the date that the awarded me in 2001 they said that was when I refiled. That is after they had said my filing in april 1970 and refiling with new evidence (which we realy had to fight for ) in 1995 was not acceptable for what ever reason.

My attorneys have all the copies of my c-file I do know in 2001 I saw my c files at the RO in ST Louis and both folders were 4 inches thick and they were working on the next one.

If they would just give us what we deserve and not keep screwing us around we would have three new forests.

Flatbroke (Chuck)

[broncovet]

Yes...item #3, 38 CFR 3.156 c makes it clear what the effective date is: The date date VA received the previously decided claim.

Edited April 9, 2013 by broncovet